By Leonardo Neri

At the end of last year, sports betting was legalized in Brazil, as per the enactment of Law No. 13,756/2018. However, the Ministry of Finance still needs to regulate the rule, clarifying how the operation will be established, and who will be the agents qualified to explore the activity. The deadline for regulation should occur within two years, counting from the enactment of the law, extendable for the same period.

The essential points that the regulation will have to adhere to range from the functioning of the supervision of sports betting, the extent of the liability of companies and bettors, in addition to the rules that must be followed both for the granting of licenses for the exploration of the activity, and for the resolution of possible disputes.

The rule also resolved to clarify the amounts collected by betting houses, not limiting itself to establishing the destination of the resources that will be collected through taxes, but extending the regulation to fixed percentages of cost and payment of bettors, which in practice may make the interest of some unfeasible. players in entering the segment, given the restriction of operating in an unpredictable environment, such as the world of sports.

The law also set a percentage of 1 and 2% for the payment of royalties for the use of football club symbols for the promotion and execution of the fixed-bet lottery. Following this criterion, direct negotiation between clubs and sports betting companies may be difficult, as well as there being little opportunity for the club to oppose the use of its symbol.

On this point, the rules for the use of brands and name protection are currently set out in the Federal Constitution, the Brazilian Civil Code, the Pelé Law and the Intellectual Property Law, but the issue is controversial and controversial in relation to the use of the names of football clubs.

 The Pelé Law (Law 9.615/98), provides in its article 87 for the protection of the brand and name of entities administering sports or practicing sports.[1]

The Industrial Property Law (Law No. 9,279/96) concerns the protection of brands in general, and in its article 124, section XIII, it states that the name, award or symbol of a sporting event cannot be registered as a brand.[2]

 Finally, with regard to the provisions concerning the protection of names and brands, article 132 of the Industrial Property Law, in its section IV, states that the owner of the brand cannot prevent the brand from being cited in publications without commercial connotations.[3]

There are several issues that must be detailed in the regulation of the rule, such as the one related to the use of the clubs' names and the clubs' freedom to negotiate with new entrepreneurs that will emerge in the peripheral market of the sports product. Sports betting is already a reality, as it is operated by foreign websites on national soil, without tax collection. Legalized betting, on the other hand, is an activity consistent with individual freedom and well established and monitored, and will only bring benefits to revenue, to the consumer and to the sport.

[1] Art. 87. The name and symbols of a sports administration entity or sports practice, as well as the name or sports nickname of the professional athlete, are their exclusive property, and are legally protected, valid throughout the national territory, for an indefinite period, without the need for registration or endorsement with the competent body.

[2] Art. 124. The following are not registrable as trademarks:

XIII – name, prize or symbol of a sporting, artistic, cultural, social, political, economic or technical event, whether official or officially recognized, as well as any imitation likely to create confusion, except when authorized by the competent authority or entity promoting the event;

 [3] Art. 132. The trademark owner may not:

IV – prevent the citation of the brand in speech, scientific or literary work or any other publication, as long as there is no commercial connotation and without prejudice to its distinctive character.”